Rosenberg Kosakoski LLP is pleased to announce that we are headed to the Supreme Court of Canada with our client Pivot Legal Society to intervene in the matter of R. v. Boudreault. This appeal considers the constitutionality of the mandatory victim surcharge contained in s. 737 of the Criminal Code. The mandatory surcharge, which was enacted by the Harper government and has faced intense media scrutiny, requires judges to impose a fine on all offenders for all offences, regardless of the circumstances of the offender, including ability to pay.

Pivot Legal Society, represented by our Graham Kosakoski, will submit that the victim surcharge violates the s. 12 Charter guarantee against cruel and unusual punishment and should thus be struck down. As we submitted in Pivot’s motion for intervention:

Pivot’s clients who are unable to pay the imposed victim surcharge face the indefinite threat of imprisonment, always left to wonder whether their next interaction with law enforcement will, at the unfettered discretion of the state, lead to their arrest and their compelled appearance in court to justify the “reasonableness” of their failure to satisfy their debt, with the looming possibility of imprisonment for failure to do so.

Pivot will submit that this state of uncertainty fuels fear of authorities which, in turn, jeopardizes the health and safety of these populations by driving the activities they engage in—whether drug use, sex work, and/or sheltering outdoors—further underground as individuals attempt to avoid detection. This, in turn, results in reduced access to public services, including police protection, health care, and social welfare, and further exposes these populations to violence, isolation, and illness – indeed, fear of arrest may stop someone from calling 911 at the scene of an overdose, may, once again, lead sex workers into isolated locations, and may drive homeless people away from life-sustaining services. Pivot will argue that these consequences are a reasonably foreseeable impact of the mandatory victim surcharge and one which renders the impugned punishment “far beyond what is necessary to protect the public, far beyond what is necessary to express moral condemnation of the offender, and far beyond what is necessary to discourage others from engaging in such conduct” and thus grossly disproportionate, contrary to s. 12 of the Charter.

The date for the hearing of the appeal has yet to be determined, although we anticipate the appeal being heard in early 2018. For media and other inquiries, please contact us at [email protected]